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United States v. Johnson

United States District Court, E.D. Missouri, Eastern Division

August 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
VERNON JOHNSON, Defendant.

          ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Defendant's pretrial motions. Defendant, Vernon Johnson, is charged in a superseding indictment with one count of being a felon in possession of a firearm, one count of being a felon in possession of ammunition, and two counts of tampering with a witness. (ECF No. 46.) All pretrial motions were referred to United States Magistrate Judge Patricia L. Cohen under 28 U.S.C. § 636(b). Defendant filed an Amended Motion to Suppress Evidence and Motion to Compel the Government to Provide Defendant with Unredacted Discovery.[1] (ECF No. 52.)

         In his motion to suppress evidence, Defendant alleges that (i) his Fourth Amendment rights were violated when officers used a key provided by the landlord to open the door and enter the apartment leased by his girlfriend, Ashley Puryear, where Defendant was also staying; (ii) that the two firearms obtained from a search of a bedroom nightstand shortly thereafter should be suppressed as the officers had neither a warrant nor consent for the search; and (iii) that ammunition and other evidence obtained as a result of a protective sweep of the apartment, the arrest of Defendant, and the firearms should all be suppressed as the fruit of the unlawful entry and search. The United States responded to the motion, asserting that exigent circumstances supported the warrantless entry into the apartment, as it was reasonable for the officers to believe, based upon a 911 call of a woman yelling or screaming, and a second call shortly thereafter of shots fired, that Ms. Puryear or her child might be in danger. The government further asserted that following their lawful entry into the apartment to confirm the safety of the occupants, the officers were justified in conducting a protective sweep, during which time they observed evidence in plain sight, including ammunition, a spent shell casing, bullet holes in the walls and a doorway, and a bedroom door that appeared to have been broken into. This evidence, together with the interview of Ms. Puryear and other evidence obtained during their investigation, provided probable cause to arrest Defendant. Finally, the government asserts that Ms. Puryear provided consent to reenter the apartment and obtain the firearms from the right-hand nightstand.

         On February 11, 2019, Magistrate Judge Cohen held an evidentiary hearing, at which the government provided the testimony of the landlord, Jadiene Davidson, and Sgt. Kelly Fisher and Officer Mary Edmond, and ATF Special Agent Jeff Thayer. Evidence was presented that at the time of the hearing Officer Klein - who authored the police report - was deceased. Defendant called Ms. Puryear, who repeatedly refused to answer questions on cross-examination, purportedly - and inappropriately - under the Fifth Amendment. Numerous exhibits were also introduced, including photographs of the apartment as it appeared when the officers first entered, recordings of the communications with police dispatch, and tapes of later telephone calls between Defendant and Ms. Puryear. Following the filing of a transcript of the hearing, the parties filed post-hearing briefs.

         On June 11, 2019, the Magistrate Judge issued her Order and Report and Recommendation (the “R&R”) in which she concluded that exigent circumstances justified the warrantless entry into the apartment, and that any delay between arrival at the apartment building and entry into the apartment was reasonable under the circumstances. The Magistrate Judge further concluded that Ms. Puryear consented to the entry into her apartment, and the seizure of the firearms from the nightstand. As Defendant did not challenge either that the ammunition seized was in plain view or that there was probable cause to arrest Defendant, the Magistrate Judge did not further address those issues. (ECF No. 83.) Defendant thereafter waived his rights under the Speedy Trial Act, and requested a continuance of the trial setting, which is now set for September 16, 2019.

         Defendant filed objections (ECF No. 90) to the R&R, asserting that (i) the landlord could not lawfully authorize entry into the apartment, and exigent circumstances did not exist, as demonstrated by the officers' delay in making entry; and (ii) the officers did not have consent to re-enter the apartment and seize the firearms from the nightstand. Although Defendant states he is objecting to the Magistrate Judge's findings of fact and legal conclusions, Defendant does not identify any specific factual findings in the R&R to which he objects. To the contrary, Defendant states that “[a]s the Court did an artful job reciting the facts of the case, ” he will not restate them, and instead incorporates the facts stated in the R&R. (ECF No. 90, at 1.) The Government filed a generic response to the objections, asserting that the Magistrate Judge's “findings of fact and conclusions of law are sound and supported by the evidence, ” but otherwise providing no additional discussion or legal reasoning.

         When a party objects to a Report and Recommendation concerning a motion to suppress in a criminal case, the court is required to “‘make a de novo review determination of those portions of the record or specified proposed findings to which objection is made.'” United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)).

         The Court conducted a de novo review of the motion to suppress, including a review of the transcript and the exhibits introduced at the hearing. Based on that review, the undersigned concludes that the Magistrate Judge made proper factual findings and correctly analyzed the issues.

         Additional Facts

         To the facts recited in the R&R, which the Court adopts and incorporates, the Court adds the following facts for further clarification. As reflected on Govt. Ex. 25, [2] at 7:53 a.m., the police received the first relevant call, to 911. The caller identified herself as a neighbor, and said she heard screaming - someone saying, “Don't do that” - and a lot of loud noises. She clearly identified the apartment as number 605. She further stated that it was a secure building, she identified her own apartment as 505, and said she would buzz the police in if they contacted her. (Govt. Ex. 25.) Officers responded to the call, but found no disturbance in apartment number 605.

         At 8:29 a.m. the second call was received. A woman who identified herself as Ashley Puryear's friend said she was reporting an emergency at 1600 Locust. She said her best friend, Ashley, had just texted her saying, “I think I'm going to die. He's shooting inside the apartment.” The caller advised her belief that Ashley was referring to shooting a gun, and that Ashley was in apartment 506. She said Ashley lived there with her boyfriend Vernon, and that Ashley had a four-month-old baby. She advised that Vernon's older sister said that he was bipolar. She said she called the police because Ashley couldn't do so herself. In further conversation, the caller confirmed that it was a secure building, that she did not know how to gain entry, and that she (the caller) could text Ashley and tell her to buzz the officers up. Id.

         In response, Dispatch issued a call regarding 1600 Locust, apartment 506, which was identified as a secured building. The report stated that a third-party had provided information that the apartment's resident's child's father, who was bipolar, was firing shots in the home.

         The prospect of a mix-up with respect to the apartment number related to the first call became clear when one of the officers who had responded to the first call contacted Dispatch. The officer advised that in response to the first call, they had gone to 1600 Locust and contacted the caller in apartment 505, who answered and let the police in. Per the caller's information, they investigated at apartment 605, and discovered no disturbance. The person in 605 said he or she did not hear any yelling or shots fired, and the officer stated that they concluded their investigation. The officer confirmed that the report in the first call identified apartment 605, not 506. Id.

         Dispatch continued to have additional conversations with Ashley's friend, and advised that officers were on the way. Ashley's friend provided Ashley's telephone number, and advised that the text from Ashley had been received at 8:13 a.m. Dispatch tried calling Ashley's telephone number, but got no response. In the next communication with Ashley's friend, the friend advised that she had sent return texts to Ashley, but received no response. The friend confirmed Ashley's apartment number and telephone number. She also said Ashley worked at her own store, but usually didn't go to work until 1:00. In response ...


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